On 14 December 2023, AG Emiliou delivered his opinion in case C‑90/22 (‘Gjensidige’ ADB), which is about Brussels I bis, more precisely Articles 71 and 45, and the Convention on the Contract for the International Carriage of Goods by Road (CMR).
The context: A “dispute arose following a theft of cargo during its transportation from the Netherlands to Lithuania. The insurer concerned claimed compensation from the carrier and it did so in Lithuania, relying on a choice-of-court agreement contained in the contract of carriage.
5. However, at that point in time, the carrier had already initiated judicial proceedings in the Netherlands, with the aim of establishing that its liability in this particular context was limited. Before granting that claim, the Netherlands court affirmed its jurisdiction by applying one of the jurisdictional rules contained in the Convention on the Contract for the International Carriage of Goods by Road (‘the CMR’), despite the choice-of-court agreement referred to above, which, from the point of view of that court, could not exclude the other (alternative) grounds of jurisdiction set out in the CMR.
6. Following recognition by the Lithuanian courts of that judgment, [Gjensidige, an insurance company that had insured the consignment and made an insurance payment] filed an appeal in cassation before the Lietuvos Aukščiausiasis Teismas (Supreme Court of Lithuania, Lithuania), the referring court. It argues that recognition of the judgment of the Netherlands court is at odds with Regulation No 1215/2012, as that regulation establishes, in principle, the exclusivity of the jurisdiction resulting from a choice-of-court agreement.
7. In those circumstances, the referring court wonders, first, which rules of jurisdiction apply. It notes that Regulation No 1215/2012 confers primacy of application to rules laid down in a specialised international convention, such as the CMR. Nevertheless, it doubts whether such precedence may permit a choice-of-court agreement to be disregarded, in view of the enhanced protection accorded to those agreements by Regulation No 1215/2012. Second, it seeks clarification on whether this increased protection must result in the recognition of the judgment of the Netherlands court being refused. Although Regulation No 1215/2012 does not expressly allow for such an approach, the referring court enquires whether broader interpretation thereof is called for so as to safeguard, in essence, the intentions of the parties, as documented in the choice-of-court agreement at issue”.
The opinion: “Article 45(1)(a) and (e)(ii) of Regulation (EU) No 1215/2012 […] must be interpreted as meaning that the grounds for the refusal of recognition set out therein do not apply to a situation in which the court of origin established its jurisdiction on the basis of one of several rules contained in a specialised convention, within the meaning of Article 71 of Regulation No 1215/2012, which include – but do not classify as exclusive – a choice-of-court agreement, and when the court of origin was not the court designated by the choice-of-court agreement concluded by the parties concerned.
Moreover, Article 45(1)(a) of Regulation No 1215/2012 must be interpreted as meaning that an error, when established, as to the determination of the applicable law cannot, per se, lead to the recognition of a judgment being refused on the ground that it is contrary to the public policy of the State addressed”.
European Civil Justice 